An International Guide to
Patent Case Management for Judges

4.6.4 Relevant issues in patent cases involving foreign elements

For the trial of civil patent cases involving foreign elements, the Law on the Laws Applicable to Foreign-Related Civil Relations¹³⁴ and Part 4 (“ Special Provisions on Foreign-Related Civil Procedures”) of the Civil Procedure Law apply. Chapter 22 (“Special Provisions on Foreign-Related Civil Procedures”) of the Interpretation of the Civil Procedure Law further interprets relevant provisions of the Civil Procedure Law.

Article 522 of the Interpretation of the Civil Procedure Law stipulates that a people’s court may determine a case as a foreign-related civil case if:

1. (1) one or both concerned parties are foreigners, stateless persons, or foreign enterprises or organizations; or
2. (2) the habitual residences of one or both concerned parties are outside the territory of the People’s Republic of China; or
3. (3) the subject matter is located outside the territory of the People’s Republic of China; or
4. (4) the legal facts resulted in generating, altering, or terminating of civil relations occur outside the territory of the People’s Republic of China; or
5. (5) other circumstances based on which the case can be identified as a foreign-related civil case.

Chapter VII (“Intellectual Property Rights”) of the Law on the Laws Applicable to Foreign-Related Civil Relations includes three articles:

Article 48. The ownership and content of intellectual property rights are governed by the law of the place where protection is sought.

Article 49. The parties may by agreement choose the law applicable to the transfer and license of intellectual property rights. In the absence of any choice by the parties, the relevant provisions of this law on contracts shall apply.

Article 50. Liability for infringement of intellectual property rights is governed by the law of the place where protection is sought. The parties may also by agreement choose to apply the law of the place where the court is located after the infringement occurs.

On December 10, 2012, the Supreme People’s Court issued the Interpretation of the Law on the Laws Applicable to Foreign-Related Civil Relations, which came into effect on January 7, 2013, and was later amended on December 29, 2020.¹³⁵

Articles 8–10 of the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights provide for the exemption and streamlining of notarization and authentication procedures for extraterritorial evidence in civil cases involving intellectual property. In particular, Article 8 lists circumstances under which the notarization and authentication of extraterritorial evidence can be exempted, including, inter alia, where there is other evidence to prove the authenticity of the extraterritorial evidence. Where the conditions stipulated in Article 8 are not met, but the circumstances stipulated in Article 9 are met, then the authentication of relevant extraterritorial evidence can be exempted.

To facilitate the parties and improve litigation efficiency, Article 10 of the Provisions on Evidence in Civil Procedures involving Intellectual Property Rights also specifically stipulates the following:

Where the formalities for the notarization or authentication of a power of attorney or other certification formalities have been undergone in accordance with the provisions of Articles 59 and 264 of the Civil Procedure Law under the procedure at first instance, a people’s court may no longer require the relevant party to undergo the aforesaid formalities concerning the power of attorney in subsequent civil procedures.

With respect to foreign-related patent administrative cases, relevant provisions in Chapter IX (“Foreign-Related Administrative Procedure”) of the Administrative Procedure Law apply.